NC Law Professor Corrects The Record: Amendment One Could 'Invalidate' Domestic Violence Protections

May 02, 2012 3:31 pm ET by Carlos Maza

On Tuesday, Vote for Marriage NC – the group leading the effort to pass a constitutional amendment banning same-sex marriage in North Carolina – held a press conference aimed at responding to legal concerns raised about the amendment’s potential impact on domestic violence protections. According to the group’s press release:

Today, a coalition of District Attorneys, legal professionals, and other law enforcement officials sharply rebutted claims that the pending constitutional amendment on marriage would strip citizens of domestic violence protections. ... Additionally, a written statement was issued by over a dozen prosecutors and law enforcement officials that said, “The protections of North Carolina’s domestic violence statute (General Statutes 50B-1) do not depend on the marital status of the victim or her relationship to the abuser.

The press conference came just days after the group promoted a report by a number of anti-gay “legal experts” attempting to downplay the amendment’s potential impact on non-marital legal agreements.

According to University of North Carolina law professor Maxine Eichner, however, Vote for Marriage NC vastly underestimates the scope of the marriage amendment. In an email to Equality Matters Wednesday, Eichner – whose areas of legal expertise include family and women’s law – wrote:

First, as indicated in the “Statement from Family Law Professors,” which was signed by family law professors from every law school across the state, every one of us believes that the Amendment One threatens domestic violations protections for unmarried couples, whether they are same-sex or opposite-sex.

Second, no one whatsoever – whether they be a district attorney or a law professor – can say with absolute certainty that the amendment will or will not impact domestic violence protections. That is because courts will have the ultimate say on what the amendment means. And at this time, the amendment’s prohibition on “domestic legal unions” has not been interpreted by courts in this state or any other state.

Third, in Ohio after the state passed a more-narrowly drawn amendment than our own, courts dismissed domestic violence charges or overturned them on appeal in at least 30 cases. Domestic violence protections in that state were thrown into chaos for almost three years. At that point, the Ohio Supreme Court ruled that domestic violence protections for unmarried couples did not violate the Ohio amendment. It did that, however, based on the narrower language of the Ohio amendment, which barred the state only from recognizing a legal status that “approximates” marriage. Our amendment’s language, though, bars any recognition of “domestic legal unions,” not simply those that approximate marriage. If a North Carolina court applied the same rationale as the Ohio Supreme Court to our amendment’s language, domestic violence protections for unmarried partners would be struck down.

Fourth, the written statement from prosecutors and law enforcement officials that our domestic violence protections do not depend on the marital status of the victim is certainly accurate based on current North Carolina law. The relevant question is whether it will still be accurate if the amendment passes. The North Carolina Constitution, as the state’s fundamental legal document, invalidates state law that conflicts with it. [emphasis added]

Eichner’s comments reflect widespread concern among legal experts about the amendment’s overly broad wording, especially in relation to domestic violence protections. They also reflect growing bipartisan criticisms among politicians as well as legal, business, and medical experts about the amendment’s potential to result in unintended consequences.